The legal drive to make California the second state in which same-sex couples can marry resumed on Wednesday with arguments in a pair of lawsuits that seek to have the state's laws banning same-sex marriage overturned. The plaintiffs, who include the city of San Francisco and a dozen same-sex couples, maintain that California's historical position as a leader in gay rights compels the courts to rule that withholding marriage rights from gay and lesbian couples violates the equal protection provision of the state constitution.
Shannon Minter, legal director for the National Center for Lesbian Rights, argued on behalf of the gay and lesbian couples. Minter told San Francisco superior court judge Richard Kramer that same-sex couples who want to marry "are seeking nothing more and nothing less than the opportunities available to others in the state." Gay and lesbian couples, he said, want "the same right to marry the person of their choice, to take on the rights and responsibilities of caring for each other, and to provide for the security of their children."
San Francisco chief deputy city attorney Therese Stewart told the judge that state laws requiring marriage to be between a man and a woman violate the California constitutional rights of equality, liberty, and privacy. She added that "the state constitution has independent force" and may provide greater rights than the federal Constitution.
Wednesday's arguments were expected to run into Thursday. Kramer announced at the start of the hearing that he will issue a written decision at a later date, perhaps after the first of the year. Whatever he rules is certain to be appealed to the state court of appeal and the California supreme court.
The state attorney general is arguing that the existing definition of marriage should be upheld as an important tradition, maintaining that the progress the state already has made in advancing gay rights--including the implementation of a domestic-partner registry--is sufficient to ward off a constitutional challenge. "This is not a state like other states, where rights have been denied same-sex couples," senior assistant attorney general Louis Mauro, who is representing the state, said before the hearing. "The issue is whether it's unconstitutional to provide those rights and benefits without calling it marriage."
The state also contends that if Californians want to legalize same-sex marriage, the way to do it is through the legislature or a ballot proposition submitted to voters, not the courts. Seconding that argument are two Christian legal groups opposed to any spousal rights for gays and lesbians, the Arizona-based Alliance Defense Fund and the Florida-based Liberty Counsel. The organizations, which are representing two traditional marriage groups based in California, have submitted papers showing they want the court to rule that same-sex couples can't marry because the purpose of marriage is procreation.
At issue in the cases is a 1977 amendment to the California Family Code that defines marriage as "a personal relation arising out of a civil contract between a man and a woman." Before that, the law had an age limit and other requirements but was silent on the subject of gender. The trial is the first stop in what is expected to be a yearlong odyssey that may end in the state's highest court. The consolidated cases were brought in March after the California supreme court ordered San Francisco officials to stop granting marriage licenses to gay and lesbian couples, while indicating that it might be willing to consider the core constitutional issue after it passed through the lower courts.